Symposium - A Constitutionalism of Decolonization: Thoughts on Navtej Johar v. Union of India

Aradhya Setia

Yale Fox International Fellow

Colonial Afterlife

On 6 September 2018, in Navtej Johar v. Union of India, the Indian Supreme Court partially struck down Section 377 of the Indian Penal Code, which criminalized “carnal intercourse against the order of nature.” Section 377, first enacted in 1860 in British India, was later exported to several erstwhile British colonies. “377” has become a symbol of anti-sodomy laws across Commonwealth countries. The provision has survived in India, like many other jurisdictions, despite anti-colonial movements and a subsequent constitutional democracy. As Douglas Sanders argues, this provision epitomizes, in many ways, the “afterlife of British colonialism in Asia.”

The afterlife of British colonialism in India persists in many forms, colonial laws being among the most powerful legacies. The Section 377 dispute is not the first time that India experienced anxieties caused by a vast body of colonial laws, which seems to be an ongoing feature of colonial afterlife in a post-colonial India, from courtroom arguments to legislative reform debates, and social movements. Even the Constitution has not escaped the ire, perceived by many as a document thoroughly influenced by Anglo-American constitutionalism superimposed by Indian elites. In this context, how does a post-colonial constitution deal with colonialism’s legal afterlife? Towards this objective, Navtej Johar lays down a few paths to chart.

What is ‘colonial’ about the law? Section 377 is colonial in at least two ways. It is colonial in its substantive content as it reflects a British conception of morality – Victorian morality – arguably alien to indigenous moral concerns. It is colonial because it imposes a foreign set of morals on Indian population. But Section 377 is colonial in another sense – a procedural one. It was enacted by a foreign government, which did not represent the popular will, unlike a legislature elected by the people of India. These are two different concerns of colonial law. Many laws which are not colonial in their substantive contents, or may even enjoy the approval of Indian population, were enacted through a colonial procedure (eg. most parts of Indian Evidence Act). Perhaps, therefore, it is only fair that all four concurring opinions (with two judges writing a combined opinion) have spent considerable ink in making the ‘colonial’ nature of the law clear. In the next few paragraphs, I will attempt to locate substantive and procedural concerns with colonial law in ‘transformative constitutionalism’ and ‘presumption of constitutionality’ respectively, both of which have found a new life in the judgment. I argue that these two aspects of the judgment together trace a path for, although not exhaustively, a constitutionalism of decolonization.

Transformative Constitutionalism

The Indian Constitution was aimed at bringing “social revolution”, with the objective of eradicating deep inequalities and discrimination that had characterized the hierarchical colonial (and pre-colonial) past. As Chief Justice Misra opines in Navtej Johar, “the ultimate goal of our magnificent constitution is to make right the upheaval which existed in the Indian society before the adopting of the Constitution.” (Mishra J. para 95) Transformative constitutionalism does not seek to restore the society to its pre-colonial past. In fact, to the very opposite, it seeks to transform society from the perils of accumulated past, albeit intensified by colonial experience.

Notwithstanding the difficulty to define it, the core tenet of transformative constitutionalism, most prominently recognized in South African jurisprudence, is that instead of assuming equality, it aims to transform a hierarchical society into a more equal one. It empowers the state to transform the society, while restraining its excesses, and constitutionalism acts as a catalyzer, instead of a neutral arbiter. In other words, unlike in liberal tradition, constitutionalism is not only about restraining the government power, but also to channel it to achieve social transformation.

Transformative constitutionalism could also entail an avoidance of strict legal and judicial methodology in order to achieve social transformation. Indian constitutional text, history and structure show a commitment to transformative objectives, involving, among other things, a strong commitment against social hierarchies. However, in order to achieve those objects, the Supreme Court has employed several tools to remove the constraints of legal forms and process, varying from diluting standing requirements (public interest litigation) to legislating through judicial directives. While several scholars have previously welcomed the transformative potential of court’s avowed anti-formalism, recent scholarship has challenged the conventional wisdom. In the short run, it may guarantee remedy to the apathy of other branches; in the long run, it only harms the constitutional balance and transformative potential. The challenge for the future of transformative constitutionalism then would be how to embrace it in its post-colonial transformative objective, but to be cautious with the removal of judicial methods and forms.

Presumption of Constitutionality

If transformative constitutionalism aims at undoing the substantive content of colonial laws, the Supreme Court’s employment of presumption of constitutionality addresses a reprimand to the colonial process of law-making. The presumption of constitutionality requires that courts should give due respect to legislative decisions, as the legislature is elected by the people (democratic accountability), and it understands their needs better than the courts (better capacity). In terms of legal consequences, the presumption can play two roles. First, as a principle of procedure, it locates the burden of proof on a petitioner challenging constitutionality of a statute. Second, as a principle of deference, wherein the courts should defer to legislative interpretation of the Constitution. This is because Parliament is deemed to be aware of constitutional provisions, and should have made its laws keeping in mind constitutional restrictions (Navtej Johar, Nariman J., para 90). Nariman J. strips the colonial laws (specifically Indian Penal Code) of this presumption:

“Where, however, a pre-constitution law is made by either a foreign legislature or body, none of these parameters obtain. It is therefore clear that no such presumption attaches to a pre-constitutional statute like Indian Penal Code.” (emphasis added)

Two important points are to be noted here. First, that Nariman J. is not restricting the removal of presumption to Section 377; he extends it to the entire Indian Penal Code. Second, the reason for doing so is the colonial process of law-making, not the law’s substantive content. Various laws in India were originally made by the colonial government. It is not clear from the judgment itself as to what the consequence of removal of presumption would be. Does it mean that the burden shifts to the government, i.e. it has to prove constitutionality, rather than petitioners having to prove unconstitutionality? Does it mean that pre-constitution laws deserve less deference from the courts? Further, what about those provisions of the pre-constitution laws which have been amended by the Parliament after the coming into effect of the Constitution? For example, Section 375 of the Indian Penal Code (defining rape) has been substantially amended by the Parliament in 2013, distinguishing it from other provisions, which have received only tacit approval of the legislature due to absence of any amendment. These questions are yet to be resolved.

Expressive Function

The Court has laid down a rich jurisprudence. We have discussed some parts here, and the posts to follow will introduce us to a granular analysis of the decision. While jurisprudential components are essential, a constitutionalism of decolonization is incomplete without an account of the expressive function. “History owes an apology,” stated Malhotra J., for ostracism that the LGBT+ community has suffered over centuries. This, coupled with various parts of the judgment, also performed an expressive function in locating post-colonial Indian constitutionalism as an exercise of, among other things, decolonization of colonial legal afterlife.

We might see a further application of this constitutionalism of decolonization in at least two constitutional cases soon to be decided by the Supreme Court, dealing with the constitutionality of marital exception to rape, and criminalization of adultery, both colonial-era laws.

Aradhya Sethia is a Yale Fox International Fellow at Melbourne Law School.